Many people either pay or receive child support. In a perfect world, the party who is ordered to pay child support would pay the exact full amount on time each month. However, that is sometimes not the case, so it is important to know your options and/or the consequences of your actions in the following scenarios regarding payment and receipt of child support.
While not something that happens very often, parents who are ordered to pay child support might pay more than they are obligated to pay. You might be thinking, “Now, why on earth would you do that?!” There are actually several Missouri Appellate opinions where a parent had overpaid child support and then sought a credit toward subsequent support payments when the other parent filed a Motion for Contempt. A party will not receive a credit against future support payments for a voluntary overpayment unless the parties agree to a credit or there are “equitable circumstances” that justify the Court giving a credit. Such equitable circumstances are determined by the Court on a case-by-case basis, and Missouri Courts have not articulated any general rules regarding when such equitable circumstances exist. (See Example 1 below)
Sometimes a party will make payments directly to a child or to third parties for their children’s expenses. The parent receiving court-ordered child support has the right to decide how that child support will be used to support the child. Therefore, the parent paying child support cannot be credited for payments made directly to a child or third party without the agreement of the parent receiving support, or if the Court determines that the circumstances require a credit. Again, Missouri Courts have not expressed any hard and fast rules dictating when the circumstances would require a credit, and, absent agreement of the parties, the Court will make a determination if a credit is necessary on a case-by-case basis. (See Example 2 below)
More often, a parent will not pay the court-ordered amount of child support and end up owing an arrearage. If one parent owes past-due child support, the parties can make an agreement to forgive some or all of the arrearage. That agreement will likely be enforced by the Court, so long as the agreement is supported by adequate consideration. (See Example 3 below)
However, an agreement by the parents that in the future one party will accept a lesser amount of child support than the amount that was ordered is unlikely to be enforced by the Court unless the parties petition the Court for a modification of its order. (See Example 4 below)
There is a circumstance where the Court will not order a party to pay the entire amount he or she owes in past-due child support; this is called “waiver by acquiescence.” Such a situation arises when the parties agree, or one party perceives that there is an agreement, that the parent receiving support will accept a lesser amount than is owed and the parent paying support changes her position to her detriment in reliance on the agreement or perceived agreement. Once more, whether a party changed her position to her detriment in reliance on the agreement is a question for the Court to determine on a case-by-case basis. (See Example 4 below)
The following examples are helpful to illustrate the above principles:
Mother is ordered to pay Father $500 per month in child support.
Example 1: Mother pays Father $1000 per month in child support for one year and then does not pay Father any child support for the next year. Father files a Motion for Contempt for Mother’s failure to pay. The Court will likely determine that Mother owes Father $500 per month for the year she did not pay, despite her overpayments in the previous year because there was no agreement between Mother and Father that the overpayment would be credited toward future support payments.
Example 2: Neither parent was ordered to pay any of child’s post-secondary school expenses. Mother pays child’s college expenses of over $500 per month directly to the child’s educational institution for one year and does not pay Father any child support that year. Father files a Motion for Contempt for Mother’s failure to pay. The Court will likely determine that Mother owes Father $500 per month for the year she did not pay, despite her payments directly to the child’s educational institution, because Mother and Father did not agree that Mother would make payments directly to the institution in lieu of her obligation to make child support payments to Father each month.
Example 3: Mother pays Father $100 per month in child support for 5 years. Father files a Motion for Contempt based on Mother having past-due support of $400 per month for 5 years ($24,000 total). Mother and Father agree that Mother will pay Father $5,000 immediately, and Father will forgive the remainder of the arrearage. If Father later files another Motion for Contempt for the remaining $19,000 arrearage, he will likely not succeed because he and Mother agreed the $19,000 arrearage was forgiven, and the agreement was supported by consideration.
Example 4: Mother and Father agree that Mother only pay Father $100 per month in child support, despite the Court’s Order requiring Mother to pay $500 per month. Neither files a Motion to Modify the Court’s Order and Mother pays Father $100 per month for 5 years. After 5 years, Father files a Motion for Contempt for Mother’s failure to pay $500 per month. Unless Mother changed her position in some way based on this agreement, the Court will likely determine that Mother owes Father past-due child support of $400 per month for 5 years ($24,000 total). If the Court determines that Mother changed her position in some way based on this agreement, the Court could determine that Mother owes father less than $24,000 for past-due child support, or even no arrearage at all.
As you can see, when a party deviates from the Court’s Order regarding child support, the situation can get complicated. It is important to know your options and the consequences of your actions in such scenarios. You should consult an attorney before you pay more or less child support than you have been ordered to pay, if you have not received all of the child support the other parent owes you, or if you or the other parent desire to make an agreement to deviate from the Court’s Order regarding the payment of child support. Contact Kim Guthrie, or one of our other experienced family law attorneys if you have questions about child support.